Posted
by
Soulskill
on Friday November 26, 2010 @08:50AM
from the cut-and-paste-your-way-to-innovation dept.

An anonymous reader writes "As if the current situation with software patents wasn't bad enough, it appears a new phenomenon is emerging: companies are watching the commit logs of open source projects for ideas to patent. In this case, Tandberg filed a patent that was step-by-step identical to an algorithm developed by the x264 project — a mere two months after the original commit. The particular algorithm is a useful performance optimization in a wide variety of video encoders, including Theora."

If you are alleging that Tandberg copied the idea from the x264 project, that is a very serious allegation. Title 35 of the US Code, Section 102(g) prohibits anyone from getting a patent on something that he (or she) did not themselves invent. It would also violate Rule 56 of the Rules of Practice of the USPTO which requires those involved with the preparation and prosecution of a patent application to disclose to the USPTO any reason known why a patent should not issue. Failure to do so is called "inequitable conduct" and is a basis for finding the patent permanently unenforceable. In some cases it can also be a federal crime.

The US is not a first-to-file country but a first-to-invent country. That means that it is possible for an inventor to get a patent even thought they were not the first one to file an application at the USPTO but were the first to invent and were diligent in efforts to obtain a patent. Copying of this type is serious indeed. Theoretically, conduct of this type could also be a copyright infringement.

I for one would like to see a *lot* more proof before reading about allegations like this. The mere fact that one event happened after another is far from sufficient. These are *very* serious accusations.

Good idea. Unfortunately, the article says the code was released in 2008. In the US, you have one year after publication to file a patent application. After that year runs, no one can get a patent on whatever was disclosed.

Sure why not. I've seen MANY H1B workers (from India) that have done this sort of thing. We have sent several packing home because of it. They would go out, take code from an open source project and rip out the copyright then put their name to it and try to commit it to our SVN. Fortunately, because we have been burned by this in the past we instituted a "review before commit is allowed" process for ANY "outsource", "H1B", etc.. worker. They can't commit until we have reviewed. We actually take snippets of the code they want to commit and do searches to see if it came from an OSS project. You have to watch people these days.....

The authors should sue Tandberg for IP theft under the DMCA. I suspect they'd have a good case, since filing a patent is a claim of ownership. Since Tandberg could not possibly have ignored the prior art, they are thus making a fradulent claim of ownership. They could also file a complaint for abuse of judicial process. But they need to sue Tandberg's pants off, since Patent Trolls such as those operate only in the expectation that they will not be sued. They are targeting open source projects because they believe those projects to be too poor to have good legal representation.

Even if i dont like it, i do think the only viable solution in the current climate is if the open source community gets its own warchest of patents to use in negotiations.

A fund where you could input your inventions that patented them and then offer them to anyone using a GPL license for their code. If a corporate entity wants in, fine, just cross license and use them for all they care as long as they dont use their patents against GPL licensed code.

You guys have really fucked everyone up with this "Intellectual Property" concept you invented and marketed to the rest of the world.

Now everyone is arguing with everyone else because they somehow believe the delusion that they are the only fucking people in the world to ever have thought of something. And guess who is making a ton of money? The lawyers, of course.

If you have the brains to market your idea (or negotiate with someone who can) then you deserve the profits you'll make. If you just want to be paid because you thought of something, go to hell.

There's a big difference between having a flash of inspiration in the shower, and actually bringing a product to market. There's this notion that patents reward creative people - as if creative people were in short supply. Everyone is more or less creative. Those who get the reward, however, are the ones willing to make the effort to develop their ideas.

Who told you that Tandberg will use said patent after they have filed it.

Most patents today are filed defensively, to ensure that you have ammo to sue back a non-troll in a patent war similar to the one currently going on in mobile.

In fact, it is exceedingly rare for a non-troll company to actually license something for a fee from another company. If you try to do that, at the second meeting the lawyers of the company you are trying to license to open a FAT briefcase with their patent ammo and you are facing a mutually assured destruction. The sole exemption to this are industry standards with RAND tagged on them. However as the ongoing war in mobile has shown that is broken too.

This by itself should show that the system is broken. In fact that is what you need to show to _BUSINESS_ people when speaking why it is broken. They do not care about free, blah, whatever, what they care is bottom line and that has a very bad forecast in a Cold war. Cold war on the verge of mutually assured destruction is a guaranteed lose-lose situation. The budget to maintain a final solution war arsenal for all of your product exceeds by far the budget to innovate in the specific areas you want to advance.

I agree that today's IP system has become largely ineffective but let's look at why it exists.

In a day when inventions could be seen by, demonstrated to, and largely understood by laypeople, a patent meant that an individual who invested his time and effort (things of value, mind you) into creating a new product would have the chance to bring it to market. You see, the people who invent things often don't have the means for full-scale production so what would happen if BigBizCo, Inc. were to get wind of an invention before its creator could get past the prototype stage? Keep it hidden, you say? What if our inventor needed to show it to prospective investors, or needs to partner with someone who has the equipment to mass produce it? What if they secretly worked for BigBizCo? Surely BigBizCo would offer a reward for info about a new invention. Very quickly it becomes apparent that inventing is only worthwhile for the rich without intellectual property rights, and I think that's something you'd want to rant about too.

The open source person should file a complaint regarding theft of IP with the FBI and the state general attorney (if he lives in the US).
There is nothing companies like less then dealing with government lawyers.

Sounds like a great idea. That will be $10,000 (about the bare minimum to file a patent and prosecute it through issuance).

Something that is much easier and much cheaper for open source projects/idea to do is to submit a Defensive Publication, I talked with Tom Tyson of the Open Invention Network (http://www.openinventionnetwork.com/) a while ago and he explained the beauty of Defensive Publications. Basically the patent offices scour defensive publications prior to issuing a patent and if they find anything then the patent gets rejected. Therefore making it unable to patent by anyone else. These are easy to write up and their lawyers review them and submit them. I will be submitting many of my idea this way so nobody can claim patents on them, it is free.
The website is http://www.defensivepublications.org/ [defensivep...ations.org]